Line to take

Where a public authority is aware that an information request can be objectively read in more than one way and it therefore needs further information in order to identify the information requested, then it will have a duty under section 16 to assist the complainant in clarifying the request.

Where a public authority is only aware of one objective reading of a request then no s16 duty arises. If it is later found that the request can be objectively read in 2 or more ways then there will be a breach of section 1 to the extent that information relating to the complainant’s intended alternative objective reading of the request has not been provided.

Further Information

In Berend v the Information Commissioner and London Borough of Richmond upon Thames (LBRT) the complainant and the public authority disputed the meaning of the information request that had been made. The complainant intended a different interpretation of the request than was acted upon by the public authority.

The request was worded ”Copy Minutes and Agendas of all 15 meetings of the Task force re Squires and Fulwell together with all working papers and documents attached to Agendas”

The public authority (and the ICO) took this to mean:

1) copy minutes & agendas.

2) all working papers attached to agendas and

3) all documents attached to agendas.

The complainant maintained that he meant:

1) copy minutes and agendas

2) all working papers of the Task Group and

3) documents attached to agendas.

At the Tribunal the complainant maintained that his request read objectively included a request for “all working papers”. However, without prejudice to this position, he also argued that in light of LBRT’s reading of the request it had breached s16 by failing to assist him to reformulate his request to include a request for documents relevant to the task group investigations.

The Tribunal found that where a public authority has complied with the section 45 code of practice in the provision of advice and assistance it will be held to have complied with section 16. It then considered whether the requirements of the code in relation to clarifying a request were relevant to this circumstance. (See LTT87 for further information on the limits of s16 and clarification of requests under the s45 code).

The need to clarify & the duty under s16

The Tribunal commented at paragraph 47 that “Section 1(3) FOIA provides for a situation where the request is not clear and further information is sought in order to comply with the request for information. In this case the Tribunal accepts that the request appeared plain when read objectively by the public authority who considered it to mean “working papers attached to Agendas” and “documents attached to Agendas”, and that consequently there was no requirement for LBRT to seek a second meaning or ask for clarification.”

The Tribunal did not find the public authority in breach of section 16. As there was no need to seek clarification under s1(3) in this case, it follows that there was no corresponding duty under s16 to assist the applicant in providing such clarification.

Although the Tribunal did not explicitly state that the right under s1(3) has a corresponding duty under s16, in this case, and in Meunier v ICO & NS&I and Barber v ICO, it found that that the duty under s16 arose in a circumstance where there was a need to clarify under s1(3). The Commissioner’s view is that the two sections are linked in this respect.

More than one objective reading

In considering the complainants argument that his request included a request for “all working papers" the Tribunal found that in the particular circumstances of this case “there are 2 ways that the request can be read objectively and upon one of the objective readings, the original request included a request for “all working papers”.

Although it did not criticise LBRT for its reading of the request it did find the public authority in breach of s1, to the extent that information relating to the alternative objective reading of the request had not been provided. It said that “In light of this Tribunal’s findings as to the ambit of the request, LBRT have not completed their obligations under section 1(1) FOIA in that no consideration has been given to working papers which were not attached to Agendas.”

The Tribunal stated that “In a case where 2 objective readings were apparent to a public authority (which it is accepted was not the case here) they would be entitled to seek clarification of which one applied and then rely upon any clarification received in considering the request” (para 89). The Commissioner’s view is that this would be the exercising of the public authority’s right, under section 1(3), to require further information in order to respond to a request.

Whilst the Tribunal did not expand upon this point this implies that where a PA is aware of more than one objective reading then it would need clarification in order to identify and locate the information sought. The Commissioner would consider this to then trigger the corresponding duty under section 16 to provide advice and assistance to enable the applicant to “describe more clearly the information requested” (section 45 code of practice, part II, paragraph 8).

ICO approach to cases

In cases where the meaning of the request is in dispute and the request was not clarified, case officers will need to consider both the complainant’s and the public authority’s interpretations and decide whether each of these are objective readings of the request.

If the complainant’s intended interpretation is an objective reading of the request, then there will be a breach of section 1 to the extent that information relating to this alternative objective reading has not been provided.

If the complainant’s interpretation is not an objective reading then, as we are effectively deciding that the PA’s interpretation was the only objective reading, there will be no breach of either s1or s16 in this respect.

If both interpretations are objective readings of the request then, in addition to any breach of s1 already identified, there may also be a breach of s16. Case officers will need to decide whether the public authority was aware of another objective reading or not. If it was aware but failed to clarify then this will be a breach of sl6. If it was not aware of another objective reading then there will be no s16 breach in this respect.

Effect on the statutory time limit

Where the public authority is only aware of one reading of a request and so does not seek clarification under s1(3), and it is later found that there is an alternative objective reading, the statutory time period for compliance will not be affected. In such cases, it will remain that it commenced on the date of the original request. This is because the alternative reading has not been provided via a clarified request (therefore new request see LTT137) the original request included the alternative objective reading and s1(3) does not apply.

No objective reading

Where the request as phrased simply does not make sense, or has to be rephrased in order for it to make sense then there is effectively no objective reading of the request available and this Line to Take will not apply. In this circumstance the public authority will need to clarify under s1(3) and will have a duty to assist the applicant in providing this clarification under s16. It will not be acceptable for the public authority to speculate about what the applicant might mean, it will have a duty to contact the applicant and clarify the meaning with them.

N.B This LTT should be read in conjunction with LTT90 which discusses further the concept of objectivity / subjectivity in the reading of a request.